FIRST REGULAR SESSION
HOUSE COMMITTEE SUBSTITUTE FOR
HOUSE BILL NO. 534
103RD GENERAL ASSEMBLY
1497H.02C JOSEPH ENGLER, Chief Clerk
AN ACT
To amend supreme court rule 52.08, relating to class actions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Supreme court rule 52.08 is amended, to read as follows:
52.08. Class Actions
[(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued
2
as representative parties on behalf of all only if (1) the class is so numerous that joinder of all3
members is impracticable, (2) there are questions of law or fact common to the class, (3) the4
claims or defenses of the representative parties are typical of the claims or defenses of the class,5
and (4) the representative parties will fairly and adequately protect the interests of the class.6
(b) Class Actions Maintainable. An action may be maintained as a class action if the7
prerequisites of subdivision (a) are satisfied, and in addition:8
(1) the prosecution of separate actions by or against individual members of the class9
would create a risk of10
(A) inconsistent or varying adjudications with respect to individual members of the class11
which would establish incompatible standards of conduct for the party opposing the class, or12
(B) adjudications with respect to individual members of the class which would as a13
practical matter be dispositive of the interests of the other members not parties to the14
adjudications or substantially impair or impede their ability to protect their interests; or15
(2) the party opposing the class has acted or refused to act on grounds generally16
applicable to the class, thereby making appropriate final injunctive relief or corresponding17
declaratory relief with respect to the class as a whole; or18
(3) the court finds that the questions of law or fact common to the members of the class19
predominate over any questions affecting only individual members, and that a class action is20
EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended
to be omitted from the law. Matter in bold-face type in the above bill is proposed language. HCS HB 534 2
superior to other available methods for the fair and efficient adjudication of the controversy. The21
matters pertinent to the findings include:22
(A) the interest of members of the class in individually controlling the prosecution or23
defense of separate actions;24
(B) the extent and nature of any litigation concerning the controversy already25
commenced by or against members of the class;26
(C) the desirability or undesirability of concentrating the litigation of the claims in the27
particular forum;28
(D) the difficulties likely to be encountered in the management of a class action.29
(c) Determination by Order Whether Class Action to Be Maintained - Notice - Judgment30
- Actions Conducted Partially as Class Actions.31
(1) As soon as practicable after the commencement of an action brought as a class action,32
the court shall determine by order whether it is to be so maintained. An order under this Rule33
52.08(c)(1) may be conditional and may be altered or amended before the decision on the merits.34
(2) In any class action maintained under Rule 52.08(b)(3), the court shall direct to the35
members of the class the best notice practicable under the circumstances, including individual36
notice to all members who can be identified through reasonable effort. The notice shall advise37
each member that: (A) the court will exclude the member from the class if requested by a38
specified date; (B) the judgment, whether favorable or not, will include all members who do not39
request exclusion; and (C) any member who does not request exclusion may, if desired, enter40
an appearance through counsel.41
(3) The judgment in an action maintained as a class action under Rule 52.08(b)(1) or42
Rule 52.08(b)(2), whether or not favorable to the class, shall include and describe those whom43
the court finds to be members of the class. The judgment in an action maintained as a class44
action under Rule 52.08(b)(3), whether or not favorable to the class, shall include and specify45
or describe those to whom the notice provided in Rule 52.08(c)(2) was directed, and who have46
not requested exclusion, and whom the court finds to be members of the class.47
(4) When appropriate an action may be brought or maintained as a class action with48
respect to particular issues or a class may be divided into subclasses and each subclass treated49
as a class, and the provisions of this Rule 52.08 shall then be construed and applied accordingly.50
(d) Orders in Conduct of Actions. In the conduct of actions to which this Rule applies,51
the court may make appropriate orders:52
(1) determining the course of proceedings or prescribing measures to prevent undue53
repetition or complication in the presentation of evidence or argument;54
(2) requiring, for the protection of the members of the class or otherwise for the fair55
conduct of the action, that notice be given in such manner as the court may direct to some or all56
of the members of any step in the action, or of the proposed extent of the judgment, or of the57 HCS HB 534 3
opportunity of members to signify whether they consider the representation fair and adequate,58
to intervene and present claims or defenses, or otherwise to come into the action;59
(3) imposing conditions on the representative parties or on intervenors;60
(4) requiring that the pleadings be amended to eliminate therefrom allegations as to61
representation of absent persons, and that the action proceed accordingly;62
(5) dealing with similar procedural matters. The orders may be combined with an order63
under Rule 62, and may be altered or amended as may be desirable from time to time.64
(e) Dismissal or Compromise. A class action shall not be dismissed or compromised65
without the approval of the court, and notice of the proposed dismissal or compromise shall be66
given to all members of the class in such manner as the court directs.67
(f) Appeals. An appellate court may permit an appeal from an order of a circuit court68
granting or denying class action certification under this Rule 52.08 if a petition is timely filed69
as provided in Rule 84.035. The filing of a petition shall not stay the proceedings in the trial70
court unless the trial judge or the appellate court so orders.]71
(a) Prerequisites. One or more members of a class may sue or be sued as72
representative parties on behalf of all members only if:73
(1) the class is so numerous that joinder of all members is impracticable;74
(2) there are questions of law or fact common to the class;75
(3) the claims or defenses of the representative parties are typical of the claims or76
defenses of the class; and77
(4) the representative parties will fairly and adequately protect the interests of the78
class.79
(b) Types of Class Actions. A class action may be maintained if Rule 52.08(a) is80
satisfied, and if:81
(1) prosecuting separate actions by or against individual class members would82
create a risk of:83
(A) inconsistent or varying adjudications with respect to individual class members84
that would establish incompatible standards of conduct for the party opposing the class;85
or86
(B) adjudications with respect to individual class members that, as a practical87
matter, would be dispositive of the interests of the other members not parties to the88
individual adjudications or would substantially impair or impede their ability to protect89
their interests;90
(2) the party opposing the class has acted or refused to act on grounds that apply91
generally to the class, so that final injunctive relief or corresponding declaratory relief is92
appropriate respecting the class as a whole; or93 HCS HB 534 4
(3) the court finds that the questions of law or fact common to class members94
predominate over any questions affecting only individual members, and that a class action95
is superior to other available methods for fairly and efficiently adjudicating the96
controversy. The matters pertinent to these findings include:97
(A) the class members' interests in individually controlling the prosecution or98
defense of separate actions;99
(B) the extent and nature of any litigation concerning the controversy already begun100
by or against class members;101
(C) the desirability or undesirability of concentrating the litigation of the claims in102
the particular forum; and103
(D) the likely difficulties in managing a class action.104
(c) Certification Order - Notice to Class Members - Judgment - Issues Classes -105
Subclasses.106
(1) Certification Order.107
(A) Time to Issue. At an early practicable time after a person sues or is sued as a108
class representative, the court shall determine by order whether to certify the action as a109
class action.110
(B) Defining the Class - Appointing Class Counsel. An order that certifies a class111
action shall define the class and the class claims, issues, or defenses, and shall appoint class112
counsel under Rule 52.08(g).113
(C) Altering or Amending the Order. An order that grants or denies class114
certification may be altered or amended before final judgment.115
(2) Notice.116
(A) For (b)(1) or (b)(2) Classes. For any class certified under Rule 52.08(b)(1) or117
Rule 52.08(b)(2), the court may direct appropriate notice to the class.118
(B) For (b)(3) Classes. For any class certified under Rule 52.08(b)(3), or upon119
ordering notice under Rule 52.08(e)(1) to a class proposed to be certified for purposes of120
settlement under Rule 52.08(b)(3), the court shall direct to class members the best notice121
that is practicable under the circumstances, including individual notice to all members who122
can be identified through reasonable effort. The notice may be by one or more of the123
following: United States mail, electronic means, or other appropriate means. The notice124
shall clearly and concisely state in plain, easily understood language:125
(i) the nature of the action;126
(ii) the definition of the class certified;127
(iii) the class claims, issues, or defenses;128
(iv) that a class member may enter an appearance through an attorney if the129
member so desires;130 HCS HB 534 5
(v) that the court will exclude from the class any member who requests exclusion;131
(vi) the time and manner for requesting exclusion; and132
(vii) the binding effect of a class judgment on members under Rule 52.08(c)(3).133
(3) Judgment. Whether or not favorable to the class, the judgment in a class action134
shall:135
(A) for any class certified under Rule 52.08(b)(1) or Rule 52.08(b)(2), include and136
describe those whom the court finds to be class members; and137
(B) for any class certified under Rule 52.08(b)(3), include and specify or describe138
those to whom the notice under Rule 52.08(c)(2) was directed, who have not requested139
exclusion, and whom the court finds to be class members.140
(4) Particular Issues. When appropriate, an action may be brought or maintained141
as a class action with respect to particular issues.142
(5) Subclasses. When appropriate, a class may be divided into subclasses that are143
each treated as a class under this Rule 52.08.144
(d) Conducting the Action.145
(1) In General. In conducting an action under this Rule 52.08, the court may issue146
orders that:147
(A) determine the course of proceedings or prescribe measures to prevent undue148
repetition or complication in presenting evidence or argument;149
(B) require, to protect class members and fairly conduct the action, giving150
appropriate notice to some or all class members of:151
(i) any step in the action;152
(ii) the proposed extent of the judgment; or153
(iii) the members' opportunity to signify whether they consider the representation154
fair and adequate, to intervene and present claims or defenses, or to otherwise come into155
the action;156
(C) impose conditions on the representative parties or on intervenors;157
(D) require that the pleadings be amended to eliminate allegations about158
representation of absent persons and that the action proceed accordingly; or159
(E) deal with similar procedural matters.160
(2) Combining and Amending Orders. An order under Rule 52.08(d)(1) may be161
altered or amended from time to time and may be combined with an order under Rule162
62.01.163
(e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses164
of a certified class, or a class proposed to be certified for purposes of settlement, may be165
settled, voluntarily dismissed, or compromised only with the court's approval. The166
following procedures apply to a proposed settlement, voluntary dismissal, or compromise:167 HCS HB 534 6
(1) Notice to the Class.168
(A) Information That Parties Shall Provide to the Court. The parties shall provide169
the court with information sufficient to enable it to determine whether to give notice of the170
proposal to the class.171
(B) Grounds for a Decision to Give Notice. The court shall direct notice in a172
reasonable manner to all class members who would be bound by the proposal if giving173
notice is justified by the parties' showing that the court will likely be able to:174
(i) approve the proposal under Rule 52.08(e)(2); and175
(ii) certify the class for purposes of judgment on the proposal.176
(2) Approval of the Proposal. If the proposal would bind class members, the court177
may approve it only after a hearing and only on finding that it is fair, reasonable, and178
adequate after considering whether:179
(A) the class representatives and class counsel have adequately represented the180
class;181
(B) the proposal was negotiated at arm's length;182
(C) the relief provided for the class is adequate, taking into account:183
(i) the costs, risks, and delay of trial and appeal;184
(ii) the effectiveness of any proposed method of distributing relief to the class,185
including the method of processing class-member claims;186
(iii) the terms of any proposed award of attorney's fees, including timing of187
payment; and188
(iv) any agreement required to be identified under Rule 52.08(e)(3); and189
(D) the proposal treats class members equitably relative to each other.190
(3) Identifying Agreements. The parties seeking approval shall file a statement191
identifying any agreement made in connection with the proposal.192
(4) New Opportunity to Be Excluded. If the class action was previously certified193
under Rule 52.08(b)(3), the court may refuse to approve a settlement unless it affords a194
new opportunity to request exclusion to individual class members who had an earlier195
opportunity to request exclusion but did not do so.196
(5) Class-Member Objections.197
(A) In General. Any class member may object to the proposal if it requires court198
approval under this Rule 52.08(e). The objection shall state whether it applies only to the199
objector, to a specific subset of the class, or to the entire class, and also state with200
specificity the grounds for the objection.201
(B) Court Approval Required for Payment in Connection with an Objection. Unless202
approved by the court after a hearing, no payment or other consideration may be provided203
in connection with:204 HCS HB 534 7
(i) forgoing or withdrawing an objection; or205
(ii) forgoing, dismissing, or abandoning an appeal from a judgment approving the206
proposal.207
(f) Appeals. A court of appeals may permit an appeal from an order granting or208
denying class-action certification under this Rule 52.08, but not from an order under Rule209
52.08(e)(1). An appeal does not stay the proceedings in the trial court unless the trial judge210
or the court of appeals so orders.211
(g) Class Counsel.212
(1) Appointing Class Counsel. Unless a statute provides otherwise, a court that213
certifies a class shall appoint class counsel. In appointing class counsel, the court:214
(A) shall consider:215
(i) the work counsel has done in identifying or investigating potential claims in the216
action;217
(ii) counsel's experience in handling class actions, other complex litigation, and the218
types of claims asserted in the action;219
(iii) counsel's knowledge of the applicable law; and220
(iv) the resources that counsel will commit to representing the class;221
(B) may consider any other matter pertinent to counsel's ability to fairly and222
adequately represent the interests of the class;223
(C) may order potential class counsel to provide information on any subject224
pertinent to the appointment and to propose terms for attorney's fees and nontaxable225
costs;226
(D) may include in the appointing order provisions about the award of attorney's227
fees or nontaxable costs under Rule 52.08(h); and228
(E) may make further orders in connection with the appointment.229
(2) Standard for Appointing Class Counsel. When one applicant seeks appointment230
as class counsel, the court may appoint that applicant only if the applicant is adequate231
under Rule 52.08(g)(1) and Rule 52.08(g)(4). If more than one adequate applicant seeks232
appointment, the court shall appoint the applicant best able to represent the interests of233
the class.234
(3) Interim Counsel. The court may designate interim counsel to act on behalf of a235
putative class before determining whether to certify the action as a class action.236
(4) Duty of Class Counsel. Class counsel shall fairly and adequately represent the237
interests of the class.238
(h) Attorney's Fees and Nontaxable Costs. In a certified class action, the court may239
award reasonable attorney's fees and nontaxable costs that are authorized by law or by the240
parties' agreement. The following procedures apply:241 HCS HB 534 8
(1) A claim for an award shall be made by motion under Rule 74.16, subject to the242
provisions of this Rule 52.08(h), at a time the court sets. Notice of the motion shall be243
served on all parties and, for motions by class counsel, directed to class members in a244
reasonable manner.245
(2) A class member, or a party from whom payment is sought, may object to the246
motion.247
(3) The court may hold a hearing and shall find the facts and state its legal248
conclusions.249
(4) The court may refer issues related to the amount of the award to a special250
master.251
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